Atkiengesellschaft Arnold B. Heine & Co. v. Newmark

The defendant appeals from so much of the order of the court below as strikes out the second defense *52contained in the answer. The action is upon a promissory note. The defense which has been .stricken out as sham pleads that the note is without consideration.

An affirmative defense, when duly verified, cannot 'be stricken out as sham, unless the defendant’s own affidavits show that the verified answer is false.

The part of the order appealed from is reversed, with ten dollars costs and disbursements.

Present: Gildersleeve, Seabury and Lehman, JJ.

Order reversed, with ten dollars cost and disbursements.